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The Implementation Challenge Taking Stock of Government Policies to Protect and Restore Environmental Flows

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The Implementation Challenge Taking Stock of Government Policies to Protect and Restore Environmental Flows WORKING TOGETHER TO CONSERVE RIVERS FOR PEOPLE AND NATURE REPORT 2010 Conservation Climate Change Sustainability The Implementation Challenge Taking stock of government policies to protect and restore environmental flows Tom Le Quesne, Eloise Kendy, and Derek Weston © Brent Stirton / Getty imaGeS / WWF Contents Acknowedgments 04 Chapter 5. CAse studies 40 ExecutivE Summary 05 1 Mekong 40 2 Alaska 41 Chapter 1. InTroDuction 09 3 Vietnam 41 Background 09 4 Indus 42 Definitions, objectives, and scope of this report 10 5 Brazil 43 6 Michigan 44 Chapter 2. hoW Far havE WE ComE? 13 7 Florida 46 8 Australia 47 Chapter 3. obstacles To ImplemEnTation 17 9 UK 49 Obstacle 1: Lack of political will and stakeholder support 18 10 Maine 50 Obstacle 2: Insufficient resources and capacity 19 11 Mexico 51 Obstacle 3: Institutional barriers and conflicts of interest 23 12 Montana 52 13 British Columbia 53 Chapter 4. Guidelines For ovErComInG 14 South Africa 54 ImplemEnTation Challenges 25 15 Great Lakes 56 Guideline 1. Undertake a phased approach to 16 Kenya 57 implementation 26 17 Texas 58 Guideline 2. Be opportunistic 30 18 Susquehanna 58 Guideline 3. Don’t exceed available capacity, while building capacity from the onset of policy development 33 19 Costa Rica 59 Guideline 4. Limit allowable abstraction and flow 20 Lesotho 60 alteration as soon as possible 34 21 USA 60 Guideline 5. Develop a clear statement of objectives 22 Sweden 61 based on an inclusive, transparent, and well-communicated process 35 Chapter 6. ReadinG Guideline 6. Develop a clear institutional framework, 63 including independent oversight 36 anD Resources References cited 63 Guideline 7. Create sustainable financing mechanisms, in particular financial resources where re-allocation Further reading 67 is required 37 Guideline 8. Conduct proof-of-concept pilot projects 39 Guideline 9. Allow flexibility for implementation methods, while setting a clear deadline for implementation 39 3 The Implementation Challenge Acknowledgments Additionally, we thank the following experts, who, through The authors extend our warmest gratitude to the members patient written and oral interviews, provided fundamental of our international reference committee, who generously information and insights that appear throughout this report. contributed their time and considerable knowledge and Without their input, our research would have been limited experience to help formulate this project and review its to published works, which fall woefully short of telling the progress over two years: whole story. Rocío Córdoba Carl J. Bauer Coordinator, Water Management Unit, IUCN, Mesoamerica Associate Professor, Dept. of Geography / Water Resources Research Center, University of Arizona, USA Kate Lazarus Water Governance Specialist and Mekong Multiple Richard Bowman Stakeholder Platforms (MSP) Coordinator, M-POWER and the Government Relations Director, Great Lakes Program, Challenge Programme on Water and Food, Lao PDR The Nature Conservancy, USA Heather MacKay David L. Courtemanch Consultant, USA Director, Environmental Assessment Division, Maine Formerly Senior Specialist Scientist, Department of Water Department of Environmental Protection, USA Affairs and Forestry, South Africa Mark Everard Jamie Pittock Principal Scientist, Environment Agency, United Kingdom Research Associate, WWF Australia Glauco Kimura de Freitas Mark P. Smith Coordinator, Freshwater Programme, WWF Brazil, Brazil Director, North American Freshwater Team, The Nature Birgitta Malm Renofält Conservancy, USA Researcher, Landscape Ecology Group, Ecology & Rebecca Tharme Environmental Sciences, Umea University, Sweden Senior Freshwater Scientist, Global Freshwater Team, Hammad Naqi Khan The Nature Conservancy, México Director of Programmes, WWF Pakistan Dan W. Ohlson Partner, Compass Resource Management, Canada Jeff Opperman Technical Advisor for Water Management, Global Freshwater Team, The Nature Conservancy, USA Guy Pegram Pegasys Strategy and Development, South Africa Ali Sayed Freshwater Policy Manager, WWF Pakistan Nick Schroeck Executive Director, Great Lakes Environmental Law Center, USA Douglas T. Shaw Conservation Science Director, Florida Chapter, The Nature Conservancy, USA Robert Speed Consultant, Australia Barbara Weston Deputy Director, Surface Water Reserve Requirements, Department of Water Affairs and Forestry, South Africa Robert Wigington Conservation Policy Specialist, Colorado River Program, The Nature Conservancy, USA Finally, we thank Beverly Magley for her capable assistance with editing. 4 Executive summary Governments and water management ExecutivE authorities across the world have made significant and widespread progress in developing policies and laws to recognise Summary environmental flow needs. While the concept of environmental flows long predates modern discussions of the subject, an understanding of environmental flows as a public policy imperative remains a comparatively recent development. However, there is now a proliferation of debates around environmental flows, and significant current dynamism around the development of laws and policies to recognise environmental flows across the world. Indeed, we are aware of no major nation in which environmental flows are not now being discussed or incorporated into high-level water policy decision-making. Despite this significant policy development, in the majority of cases environmental flow provisions remain at the stage of policy and debate rather than implementation. Indeed, the defining characteristic of many contexts globally is precisely the lack of progress in translating these policies and intentions into action. While there has been progress in some places in capping future water development in recognition of environmental needs, successful re-allocation of water or re-operation of infrastructure in systems that are already stressed has been infrequent. Several related obstacles present challenges to the implementation of environmental flow policies across the world. These include a lack of political will and stakeholder support; insufficient resources and capacity, in water management and allocation institutions generally, and for the delivery of those functions tasked with assessing and enforcing environmental requirements; and, institutional barriers and conflicts of interest. On the basis of a number of international reviews, and the case studies and analysis undertaken for this report, a number of guidelines emerge for advancing implementation of environmental flows: • Undertake a phased approach to implementation. Phased implementation can prevent an impossible pressure being placed on constrained resources, while allowing for the evolution of approaches to implementation. Phased implementation can include increasing complexity of scientific assessment, from desktop rules to complex, site- based investigations; increasing sophistication of flow regime, from basic protection of low season base flows to complex flow regimes prescribing multiple flood peaks and inter-annual variability; and, geographical phasing, starting with high priority sites. In many of the contexts surveyed for this report, implementation has started with simple approaches in a selection of locations, and evolved to more comprehensive and more sophisticated approaches over time. 5 The Implementation Challenge • Be opportunistic. Institutional barriers can often be overcome by introducing and implementing environmental flow policies opportunistically. Opportunities may take the form of water resource planning, creative interpretations of existing policy, legal challenges or other crises such as social reform, or climate change. Being opportunistic may simply mean finding the right legal instrument. “Precipitating events” such as legal disputes or droughts may also provide openings for progress. • Don’t exceed available capacity, while building capacity from the onset of policy development. In most contexts an approach is adopted that is too sophisticated for the relevant local capacity constraints. It is important that at any given time the policy, methods, and approaches are within the ability of the existing institutions to actually implement. By continuously building technical and managerial capacity in parallel with progressive policy implementation, the capacity to implement will not be exceeded. • Limit allowable water abstraction and flow alteration as soon as possible. It is much easier to implement requirements on new users than to enact changes to existing use. Experience demonstrates that it is better to introduce a cap now that can be relaxed later if required than to allow water use to impact on environmental needs, resulting in the requirement for difficult future re-allocation processes. • Develop a clear statement of objectives for environmental flows policy based on an inclusive, transparent and well-communicated process. Support for implementation is bolstered where a clear, high- level statement of objectives is achieved at the national policy and river basin level. This can provide the political commitment required to ensure that implementation occurs. Arriving at these decisions should involve as broad a range of groups, interests, and stakeholders as practical, with the best approach depending on the context: an appropriate stakeholder process for a small creek with thousands of people living in the catchment will, of necessity, be different than a river basin with tens or hundreds of millions of people living within it. While it may not always be possible
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